Court of Appeals of Texas, Houston (1st Dist.).

Henry JERKINS, Appellant,

v.

DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, Appellee.

No. 01-89-00580-CV.

|

Feb. 1, 1990.

Before EVANS, C.J., and MIRABAL and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

*1 This is an appeal from a take-nothing judgment entered on a jury verdict in a slip and fall case. Appellant, Henry Jerkins, sued appellee, Diamond Shamrock Refining and Marketing Company, for personal injuries. In answers to special issues, the jury found neither Jerkins nor Diamond Shamrock negligent.

In the first of three points of error, Jerkins alleges the jury’s failure to find that Diamond Shamrock’s negligence was a proximate cause of the occurrence in question was against the great weight and preponderance of the evidence.

The leading Texas decision concerning a property owner’s liability for a slip and fall accident is Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983). Under the plaintiff’s burden of proof as set out in Corbin, Jerkins was required to prove that: (1) Diamond Shamrock had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm to Jerkins; (3) Diamond Shamrock did not exercise reasonable care to reduce or to eliminate the risk; and (4) Diamond Shamrock’s failure to use reasonable care proximately caused Jerkins’ injuries. Corbin, 648 S.W.2d at 296.

A single standard of review is used in deciding factual sufficiency challenges, regardless of whether a court of appeals is reviewing a negative or affirmative finding, or whether the complaining party had the burden of proof on the issue. M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.-Houston [1st Dist.] 1987, no writ). Having first examined, considered and weighed all of the evidence, we should set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.-Houston [1st Dist.] 1988, writ denied).

An appellate court may not overturn a jury finding unless it is contrary to the overwhelming weight of the evidence. Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex.App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.). The jury may accept or reject any or all of a witness’ testimony. Centroplex Ford, Inc. v. Kirby, 736 S.W.2d 261, 264 (Tex.App.-Austin 1987, no writ).

A complete review of the evidence (without the exhibits) reveals the following facts. Henry Jerkins spent most of his working life employed as an iron worker, welder, or construction worker. In 1981, he sustained a back injury that eventually required surgery, after which his doctor released him to return to work without restrictions. Although he could have returned to a job as an iron worker, he decided instead to take a job as a route salesman because it did not require as much heavy labor. Jerkins intended to work as a route salesman until he got back into shape, and hoped to return to a job as an iron worker within 12 to 18 months.

On February 11, 1983, Jerkins made a delivery to the Diamond Shamrock service station on Homestead Road as part of his regular sales route for a company that sold fried pies. He arrived at the station in the late morning and parked his van in a parking area where there were no other cars, and where the van and the driveway could be seen from inside the store.¹ Jerkins had never parked his van in that location during the five months he had been stopping at the store; he usually parked in front.

*2 Jerkins went inside the store, delivered his merchandise, and executed the necessary paperwork; however, he said nothing to the employees or the service station manager, Irvin Reed, about an oil spot. He had never discussed with Reed any problem about oil being on the premises.

Jerkins returned to his van, placed an empty box inside the van through the passenger side door, and walked around the front to the driver’s door. He claimed that as he rounded the corner by the driver’s door, his foot slipped from under him, and he fell on his lower back. He did not know what caused his fall until he got up and saw a patch of oil on the pavement. Jerkins testified the patch was approximately 18 inches long and six to eight inches wide, and appeared to have been there for several hours; however, he acknowledged he had no idea how long it had been there. Jerkins testified that he went back into the store and reported his fall to the station manager, Reed.

Reed went to where Jerkins said he fell and spread oil-absorbing granules called “Absorb-Oil” over the spot of oil. Reed described the oil spot variously as being the size of the palm of his hand, “a speck of oil,” and “a little dab of oil on the ground.” Jerkins’ inspection of the oil spot immediately after his fall did not reveal any Absorb-Oil granules already spread there. Reed did not see any oil on Jerkins’ clothing or body after his fall, nor any footprints in the oil spot or the area where Jerkins allegedly slipped. However, Reed did see grit on Jerkins’ front and back.

Reed testified that on the morning in question, he had conducted reasonably careful inspections of the premises according to Diamond Shamrock’s standards between 5:30 a.m. and 6:00 a.m., and again between 7:30 a.m. and 8:00 a.m., and had found no oil or grease spots either time. Between the second inspection and Jerkins’ arrival on the premises, Reed had looked onto the parking area from the windows of the station several times, and saw no oil or grease in the area.

No customer had complained to Reed of oil or grease in the parking area that morning, although Reed testified that he had a good relationship with his customers, and it was normal for customers to report such findings. Before Jerkins’ arrival, Reed had seen neither cars in the area, nor anyone attempting to change oil or an oil filter, activities forbidden by Diamond Shamrock policy anywhere on the premises.

Reed testified that oil or grease on a driveway is a potentially dangerous condition that should be eliminated as soon as possible. Because an oil or grease spot can occur at any time, a station manager should keep a fairly constant watch, including making periodic inspections at certain times during the day, as well as continuously watching out the window. If a station manager sees oil or grease in a driveway, he should try to remedy it immediately, because nothing going on in the store should take precedence over the concern for safety. In this instance, the appropriate response was to cover the spot with Absorb-Oil granules within a matter of minutes. Ordinarily, a station manager should put out the granules within 10 to 15 minutes of the observation of the dangerous condition. Reed speculated that the oil spot Jerkins slipped on had been present approximately 40 minutes when Jerkins fell. Jerkins admitted that he knew of nothing which Diamond Shamrock had done wrong in its maintenance of the premises.

*3 Jerkins conceded that no one witnessed his accident, and that he was the only one who claimed that an accident had occurred. He did not fill out an accident report at the Diamond Shamrock station after the accident, and would not authorize Reed to call his, Jerkins’, supervisor to report the accident. However, Reed later filled out the required accident report, and also called Jerkins’ supervisor.

After his fall, Jerkins testified he reported the incident to his boss, returned to his work facility because he was in pain, and went home for the day without finishing his ordinary route. He testified he attempted to return to work the following week, but continued to experience pain in his lower back. The last day Jerkins claimed he worked for this particular employer was February 21, 1983; however, the employer reported that Jerkins worked until March 2, 1983, and was paid for his work. Jerkins explained the discrepancy by saying that someone else must have covered his route, and his employer paid him for it anyway.

Jerkins did not see a doctor for his alleged injuries until almost a week after the accident. He was subsequently treated and eventually hospitalized by Dr. Kant, and later treated and hospitalized by Dr. Hampton, who performed surgery in July 1983. Dr. Hampton eventually released him because he could do nothing more to help him, and he then went to see Dr. Brodsky. Dr. Brodsky performed fusion surgery on his lower back in January 1984, and another surgery in an attempt to re-fuse the back in 1987. Brodsky concluded that Jerkins was unable to return to work as a truck driver or iron worker, and told him that if he were ever to work again, it would have to be in a job designed specifically to accommodate someone who cannot lift or sit. Dr. Kant testified by deposition that Jerkins’ back problems after February 1983 were “devastating” because he had “something that didn’t get well and ended up with a major problem.” Both Drs. Kant and Brodsky testified that these problems were attributable to Jerkins’ fall on February 11, 1983, which aggravated his pre-existing back problems. However, both doctors testified that Jerkins’ back injury could have resulted from his prior accidents.

An adjuster who investigated Jerkins’ workers’ compensation claim testified that she inspected the Diamond Shamrock premises and found it to be “fairly decently” kept, with no oil on the premises. Jerkins testified that even though it was not unusual for him to see oil or grease on driveways during his work, he had never seen oil on Diamond Shamrock’s driveway in his 70 trips to the premises before the accident.

The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.-Houston [1st Dist.] 1984, writ ref’d n.r.e.), and a court of appeals may not substitute its own opinion merely because it might have reached a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

*4 From a complete review of the evidence, we cannot say that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, or that it shocks the conscience, or clearly demonstrates bias. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex.1988); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The supreme court has admonished courts of appeals to be mindful that the claimed preponderance of the evidence did not convince the jury, and that reversal is warranted only where the great weight of the evidence supports an affirmative answer. Herbert, 754 S.W.2d at 144.

Jerkins’ first point of error is overruled.

By his second point of error, Jerkins alleges that the trial court erred in denying his motion for sanctions or mistrial based on Diamond Shamrock’s knowing failure to supplement certain discovery. Jerkins claims that because Diamond Shamrock failed to notify him of a change in the employment status of Irvin Reed, the station manager, he was denied the ability not only to conduct additional discovery as to Reed’s personnel file and his reasons for leaving Diamond Shamrock, but also to learn before trial that Reed could see the driveway from his glass booth at the station.

The trial court ruled that Diamond Shamrock’s failure to inform Jerkins that Reed had been terminated in 1987 constituted a failure to supplement. However, the court denied Jerkins’ request for sanctions in the form of (1) striking Diamond Shamrock’s pleadings and entering judgment for Jerkins or, alternatively, (2) granting a mistrial to allow Jerkins time to conduct additional discovery because of this new information first learned during trial. Instead, the trial court allowed Jerkins’ counsel to meet alone informally with Reed, prior to his live testimony.

Jerkins’ reliance on Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986), and Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243 (Tex.1985), as a basis for sanctions, is misplaced.² Unlike our situation, Morrow and Yeldell both involved situations where a party who failed to supplement answers to discovery sought to introduce testimony from an undisclosed witness, and the opposing party sought to prevent the undisclosed witness from testifying. In both cases, the undisclosed witness was not allowed to testify for the party who failed to supplement discovery.

A Morrow or Yeldell type analysis is inapplicable to our case for several reasons. First, Reed was a disclosed witness, not an undisclosed one. Jerkins knew Reed’s identity, his home address, and the substance of his testimony for almost three years before trial, having taken his deposition in 1986 while Reed was employed by Diamond Shamrock. Second, Jerkins, and not Diamond Shamrock, presented Reed as a witness. Jerkins did initially seek to exclude Reed’s testimony, but in fact, later called him as Jerkins’ witness after the trial court allowed Jerkins’ attorney to privately confer with Reed. Although Diamond Shamrock listed Reed as its witness, it did not seek to introduce his testimony; Jerkins subpoenaed Reed the night before trial. Error, if any, was harmless. Gee, 765 S.W.2d at 396; Tex.R.App.P. 81(b)(1).

*5 Jerkins’ claim of harm due to an inability to conduct additional discovery concerning Reed’s personnel file and Reed’s reasons for leaving Diamond Shamrock is meritless. Diamond Shamrock produced Reed’s personnel file at trial, and the trial court held the file to be inadmissible, and the reasons Reed left Diamond Shamrock to be irrelevant and inadmissible.

Further, Reed’s personnel file is not a part of the record, and Jerkins has not raised a point of error concerning either its exclusion or the exclusion of testimony concerning Reed’s departure from Diamond Shamrock.

Jerkins also alleges harm in that he learned only in his court-authorized conversation with Reed that Reed could see the driveway from his glass booth. Nevertheless, Jerkins examined Reed on this subject when he called him as a witness. As the trial court opined to Jerkins’ counsel, nothing had prevented Jerkins either from inquiring about this subject when he took Reed’s deposition in 1986, or from going earlier to the premises on his own and discovering this information himself. We find no harm.

Jerkins’ second point of error is overruled.

In his third and final point of error, Jerkins alleges that the trial court erred in excluding from evidence photographs of the accident site.

Jerkins did not include the photographs as part of the appellate record. Without the photographs in the record for review, we cannot determine whether the trial erred in the exclusion. Kraft v. National Union Fire Ins. Co., 743 S.W.2d 672, 673 (Tex.App.-El Paso 1987, writ denied); Rainey-Mapes v. Queen Charters, Inc., 729 S.W.2d 907, 914 (Tex.App.-San Antonio 1987, writ dism’d as moot); Hinsley v. Continental Trailways Bus Sys., 302 S.W.2d 668, 669 (Tex.Civ.App.-Galveston 1957, no writ).

Jerkins’ third point of error is overruled.

The judgment is affirmed.

Do not publish. Tex.R.App.P. 90.

	Footnotes
1		During the testimony of both Jerkins and Reed, a diagram of the Diamond Shamrock station was referred to constantly. That diagram is not a part of the record.
2		The supreme court has held that the failure of a party to supplement answers to interrogatories results in the automatic exclusion of testimony of an unidentified witness for the delinquent party. Morrow, 714 S.W.2d at 297-98. However, the testimony of the unidentified witness is admissible if the trial court finds that good cause exists for allowing the witness to testify. Yeldell, 701 S.W.2d at 246-47. The burden of establishing good cause is on the party offering the evidence. E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987). On appeal, the trial court’s determination of good cause is subject to an abuse of discretion standard. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).